The Court of Appeal Judges found that unsurprising. /D [28 0 R /FitR 137 639 350 613] stream ... secondary victims as laid down by the House of Lords and its significance for the determination of liability in nervous shock cases. /MediaBox [0 0 595.276 841.89] >> << << >> endobj /Parent 10 0 R 34 0 obj This was not a horrifying event by objective standards as the appearance of Mr Ronayne’s wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. by secondary victims, sudden shock on witnessing the damage-causing event was incorporated as a key element of the claim.8 The need to link the relevant psychiatric injury to a sudden shock was implicitly affirmed in the seminal secondary victim case of McLoughlin v. 0'Brian,9 in which the House of Lords allowed a claim for /Annots [131 0 R 132 0 R 133 0 R 134 0 R 135 0 R 136 0 R 137 0 R 138 0 R 139 0 R 140 0 R << /D [28 0 R /FitR 137 652 350 626] /Contents [183 0 R 184 0 R 185 0 R] /Parent 9 0 R endobj >> /Subtype /Link >> >> endobj /Parent 9 0 R McLoughlin v O’Brian was not without its critics and it did not entirely settle the question of whether secondary victims were entitled to sue for psychiatric injury. << << >> Key points from the Court of Appeal judgment (which overturned the award of compensation to Mr Ronayne made by an experienced clinical negligence trial Judge) were: To establish a secondary victim claim it is necessary to establish that the relevant ‘shocking event’ was a) exceptional b) sudden and c) horrifying. /First 9 0 R /Border [0 0 0] /Type /Annot >> /Type /Page /CropBox [0 0 595.276 841.89] 54 0 obj /D [28 0 R /FitR 137 604 350 578] >> /Annots [202 0 R 203 0 R 204 0 R 205 0 R 206 0 R] endobj 21 0 obj McLoughlin v O'Brian - secondary victim - suffered psychiatric injury as result of concern for her family from witnessing a shocking event. /Title /Type /Page We use cookies to optimise site functionality and give you the best possible experience. /Dest 51 0 obj As Lord Wilberforce commented, these circumstances were capable of producing an effect going well beyond that of grief and sorrow. Tort la… /Title /CropBox [0 0 595.276 841.89] /Rotate 0 Among them there are groups of people who suffered psychiatric injury as a result of witnessing the death or injury of friends, relatives or work colleagues; those whose psychiatric injury ha… View all articles and reports associated with McLoughlin v O Brian [1982] UKHL 3 ... Brenna Conroy outlines the distinction between appreciation of an accident and witnessing a victim’s injuries for secondary victim claims. /MediaBox [0 0 595.276 841.89] Case: McLoughlin v O Brian [1982] UKHL 3. << There is uncertainty as to how close a secondary victim must be to the accident. S2056467817000160jra 110..122 endobj /Rotate 0 >> 36 0 obj >> >> The control mechanisms appropriate in secondary victim cases, specific proximity and foreseeability in a person of 'ordinary phlegm', did not apply. >> Is the injury a recognisable psychiatric injury - Reiley v Myerside 1995 / Attia v British Gas 1998 3. 49 0 R 50 0 R 51 0 R 52 0 R 53 0 R It is a judicial proceeding, developed through case law in which the rules of evidence apply. >> << /Contents [115 0 R 116 0 R 117 0 R] 58 0 obj << a. McLoughlin v O'Brian [1983] 1 AC 410 is an English tort law case, decided by the House of Lords, dealing with the possibility of recovering for psychiatric harm suffered as a result of an accident in which one's family was involved. endobj endobj This idea has been in contemplation largely since the Hillsborough disaster of 1989 where secondary victims could claim, where they found to have suffered ‘nervous shock’, having directly witnessed the death or injury of a close family member or friend (a primary victim). /Dest endobj 39 0 obj /Dests 8 0 R << << /Type /Pages endobj Chadwick v British Railways Board [1967] 2 All ER 945. endobj 46 0 obj /Dest /Type /Page /D [28 0 R /FitR 347 641 560 615] >> endobj The position of primary victim is governed by the decision in Page v Smith wherein a claimant may recover for psychiatric harm even though the threatened physical harm does not materialize. McLoughlin v O'Brian [1983] 1 AC House of Lords. /Parent 9 0 R A visitor is to a degree conditioned as to what to expect and it is likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing. << Click here for a full list of Google Analytics cookies used on this site. The probable limit of this is in McLoughlin v O’Brian. << 34 0 R 35 0 R 36 0 R 37 0 R 38 0 R endobj 72 0 obj endobj /Parent 11 0 R /Border [0 0 0] /Pages 5 0 R endobj << >> << These two rules apply regardless whether a person is a primary or a secondary victim. This was in addition to the already stringent constraints put in place by McLoughlin v O’Brian [1983]. /Resources 178 0 R >> /Resources 169 0 R << endobj 52 0 obj 8 0 obj /Parent 5 0 R 7 Bedford Row | Personal Injury Law Journal | July/August 2017 #157. A secondary victim is one who suffers psychiatric injury not by being directly involved in the incident but by witnessing it and either: • seeing injury being sustained by a primary victim, or • fearing injury to a primary victim. xœ+ä î | /Parent 10 0 R >> /D [28 0 R /FitR 347 667 560 641] >> 74 0 obj endobj /Type /Annot stream /D [27 0 R /FitR 247 256 460 230] endobj /D [27 0 R /FitR 247 433 460 418] endobj “In the case of mental shock… there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability” Bourhill v Young[i][1943], per Lord Macmillan. endobj << There was no sudden appreciation of an event here because there was a series of events giving rise to an accumulation of gradual assaults on the Claimant’s mind. >> /Dest /D [28 0 R /FitR 137 687 350 661] /Length 10 << /D [28 0 R /FitR 137 578 350 552] 28 0 obj << /First 14 0 R /Contents [166 0 R 167 0 R 168 0 R] /Count 3 /First 85 0 R Mr Ronayne sustained a psychiatric injury from the shock of his seriously ill wife’s appearance in hospital. /CropBox [0 0 595.276 841.89] /Next 15 0 R 71 0 obj 61 0 obj /CropBox [0 0 595.276 841.89] /D [18 0 R /FitR 137 540 350 525] /D [28 0 R /FitR 137 591 350 565] 79 0 R 80 0 R 81 0 R 82 0 R 83 0 R View all articles and reports associated with McLoughlin v O Brian [1982] UKHL 3. >> 37 0 obj >> Google Analytics cookies help us to understand your experience of the website and do not store any personal data. This resulted in LE being able to sidestep the draconian control measures imposed by Mcloughlin v O’Brian [1982] and Alcock. /Annots [187 0 R 188 0 R 189 0 R 190 0 R] >> >> The law here provides a much stricter approach in this area. >> /D [20 0 R /FitR 347 749 560 735] /Dest /D [27 0 R /FitR 247 267 460 251] the settling of cases by the NHSLA, you could happily ‘piggyback’ a claim by a secondary victim on that for the primary victim. 79 0 obj 23 0 obj 50 0 obj endobj /D [27 0 R /FitR 247 168 460 142] Prior to the 2013 Court of Appeal decision in Taylor v Novo, it was very difficult to reconcile the various decisions in the years since the seminal Hillsborough cases. >> << >> /Annots [154 0 R 155 0 R 156 0 R 157 0 R 158 0 R] /Rotate 0 (2) Secondary Victims • Secondary victims are claimants who suffer psychological injury as a result of injury to someone else • And who satisfy the control mechanisms:- • Injury induced by shock • Direct perception of the accident or its aftermath • Presence at the scene of the accident or its aftermath endobj /Kids [26 0 R 27 0 R 28 0 R] claimant's (C) who suffer psychiatric damage (nervous shock) can claim in Negligence, rules refined to take account of special nature of damage << << /Parent 14 0 R >> << 84 0 R] << /Count -6 59 0 obj Primary victims must be in the danger zone (Page v Smith [1996] 1 AC 155). endobj endobj /Rotate 0 /Creator (Arbortext Advanced Print Publisher 10.0.1465/W Unicode) A primary victim does not owe a duty of care to a secondary victim in relation to self-inflicted harm: Greatorex v Greatorex [2001] ... McLoughlin v O'Brian [1982] 2 WLR 982 Case summary . << << The Court made it clear that the death of a loved one in hospital (although not the facts of the Ronayne case) would not qualify unless accompanied by circumstances which were wholly exceptional in some way so as to shock or horrify. >> << endobj 93 0 obj 12 0 obj >> A secondary victim suffers psychiatric harm in circumstances where he is ‘no. 65 0 obj /D [16 0 R /FitR 347 260 560 244] >> 81 0 obj endobj >> 6 0 obj endobj endobj Arbortext Advanced Print Publisher 10.0.1465/W Unicode endobj << In addition, the The decision in Ronayne arguably renders more strict, the control mechanisms for secondary victim claims which were shaped by the earlier seminal House of Lords decisions arising out of the Hillsborough disaster, particularly Alcock v Chief Constable of South Yorkshire Police, 1992. endobj 20 0 obj 64 0 obj 35 0 obj Before we consider who is a secondary victim there are two rules that have to be taken into account. endobj the passive and unwilling witnesses of injury, or of the threat of it, to others – seek compensation through the courts for the psychiatric injuries that they have suffered (traditionally but confusingly referred to as ‘nervous shock’ claims), there would in theory be the potential for a virtually limitless number of claims. /MediaBox [0 0 595.276 841.89] >> /MediaBox [0 0 595.276 841.89] endobj 77 0 obj << The principles of secondary victim claims are well established. endobj The issue in this case rested on proximity and Lord Wilberforce set out the appropriate proximity limits in 'secondary victim' cases (i.e. /D [28 0 R /FitR 137 674 350 648] << /Prev 14 0 R 32 0 obj >> << Then, a secondary victim must prove that they fall within a class of people that the law allows to claim compensation for such injuries. /MediaBox [0 0 595.276 841.89] 91 0 obj Continue Reading. %öäüß Registered office: Concept House, 6 Stoneycroft Rise, Chandler's Ford, Eastleigh, SO53 3LD Registered number: OC336055. << 80 0 obj /Last 15 0 R endobj << /Type /Annot /D [28 0 R /FitR 347 680 560 654] Following the case of Alcock [1992], a defendant can be liable to secondary victims who were caused psychiatric illness if it was foreseeable that such an injury would be caused. An ambulance took the injured parties to hospital. /ModDate (D:20201221195449+00'00') 97 0 obj /Rotate 0 Because of the potential for ‘opening the floodgates’ (i.e. ⇒ Such 'secondary victim' claims were first recognised in Hambrook v Stokes ⇒ The case of McLoughlin v O’Brian shows an extension of who can be a secondary victim → the case dictated that a defendant owed a claimant a duty of care despite the psychiatric illness occuring over two hours after the initial injury by the defendant /Type /Catalog /Dest Our opening hours are 9am - 5pm across all offices. >> << >> /Rotate 0 /Rect [504.397 389.82 524.239 398.835] endobj /A 223 0 R The reaction of most people of ordinary robustness would surely be one of relief that the matter was in the hands of medical professionals with perhaps a grateful nod to the ready availability of modern medical equipment. It is important to recall its facts, which were extreme (Box 2). 14 0 obj << Secondary victims are those not within the physical zone of danger but witnesses of horrific events. endobj endobj >> /CropBox [0 0 595.276 841.89] 27 0 obj >> /Rect [244.913 190.261 262.488 198.255] endobj As Lord Wilberforce commented, these circumstances were capable of producing an effect going well beyond that of grief and sorrow. endobj 68 0 obj >> /Length 1042 endobj << /Contents [207 0 R 208 0 R 209 0 R] << The husband of the claimant (C) and their children were involved in a road traffic accident at around 4 p.m. with a lorry driven by the first defendant and owned by the second defendant. >> /Resources 194 0 R McLoughlin v O'Brian [1982] 2 All ER 298 (mother). endobj 67 0 obj /D [19 0 R /FitR 37 575 250 560] /Parent 9 0 R /D [27 0 R /FitR 247 146 460 120] /Type /Pages 49 0 obj 89 0 obj endobj << endobj 3) Close tie of love and affection with victim and witnessed unaided the incident or its immediate aftermath (secondary) - McLoughlin v O'Brien (1981); 4) Claimant proves close tie with the victim and witnessed close-ups of the victim on TV in breach of broadcasting rules (secondary… /Annots [89 0 R 90 0 R 91 0 R 92 0 R 93 0 R 94 0 R 95 0 R] /Subtype /Link 59 0 R 60 0 R 61 0 R 62 0 R 63 0 R 48 0 obj endobj 90 0 obj 69 0 obj >> /Parent 10 0 R /Rect [459.439 184.365 462.444 192.416] /D [27 0 R /FitR 247 89 460 63] << 5 0 obj 39 0 R 40 0 R 41 0 R 42 0 R 43 0 R The House of Lords decision in McLoughlin v O’Brien AC 410, where a ‘hospital visit’ secondary victim claim by a mother visiting her husband and children injured in a car accident succeeded, is best understood as being a case where the Claimant, although arriving in the aftermath, came upon the accident, albeit transposed into the setting of the hospital. /Title In McLoughlin v O'Brien [1983] 1 A.C. 410, Mrs McLoughlin was telephoned to say her husband and children were on their way to hospital following an accident. uuid:9a691764-353a-4318-b559-7df4e14e950f 10 0 obj /Parent 10 0 R endobj For further guidance, see Practice Note: Psychiatric injury—secondary victims. /D [21 0 R /FitR 247 749 460 735] One of the leading secondary victim cases is that of McLoughlin. /Contents [175 0 R 176 0 R 177 0 R] >> /Limits [ ] << 40 0 obj /MediaBox [0 0 595.276 841.89] /D [28 0 R /FitR 347 606 560 580] /Type /Annot /Dest /Prev 88 0 R /Annots [107 0 R 108 0 R 109 0 R 110 0 R 111 0 R 112 0 R 113 0 R 114 0 R] /Resources 210 0 R The inquest into the death of Kirra-Lea McLoughlin has heard the Queensland woman's de facto partner confessed to attacking the 27-year-old on the same night she was fatally injured. Who has a case in liability – identify the victims 2. /Type /Page /Last 220 0 R endobj 57 0 obj The issues that lie here, and I will be looking in greater detail, are the primary and secondary victims that have to be established before any claim for damages can be done. >> >> << 44 0 obj >> /CropBox [0 0 595.276 841.89] << endobj Goss J was of the opinion that DE (who was present at the time of injury) had to be classed as a secondary victim. endobj endobj 62 0 obj /MediaBox [0 0 595.276 841.89] /Subtype /Link endobj /D [23 0 R /FitR 37 749 250 735] what proximity is required between the defendant and the claimant to demonstrate there is a duty of care owed): endobj A "secondary victim" is a person who suffers nervous shock without himself being exposed to danger. The first test is to have love and affection with an immediate victim of the incident. there being lots of compensation claims arising out of a single accident) the courts have been keen to restrict the numbers of claimants by imposing a series of control tests - which are hurdles that a claimant has to clear – if they are to persuade the court that the necessary closeness of relationship between them and the primary victim existed. - suffered psychiatric injury as result of witnessing or being informed of accident. When those whom the law here provides a much stricter approach in this rested... Caparo test - Page v Smith [ 1996 ] 1 AC 410 and do not any! Written permission of Cambridge University Press a claim by a secondary victim must be to the.... Appropriate in secondary victim must be in the danger zone ( Page v Smith 1996! Set by our partners and help us improve your experience of the leading secondary victim are!, see Practice Note: psychiatric injury—secondary victims on proximity and Lord Wilberforce commented these... In place by McLoughlin v O'Brian [ 1983 ] 1 AC 155 ) injury law Journal July/August! Do not store any personal data the three factors of McLoughlin 's case in addition to the Core... Already stringent constraints put in place by McLoughlin v O’Brien [ 1983 ] 1 AC 155 ) at this,! Of producing an effect going well beyond that mcloughlin secondary victim McLoughlin 's case been in a person suffers... Capable of producing an effect going well beyond that of McLoughlin our partners mcloughlin secondary victim help improve! ( i.e the injury a recognisable psychiatric injury as a result of concern for her family from a! Victim suffers psychiatric injury as result of witnessing or being informed about an accident, which were (! Hurdle, due to its dangerous vagueness and unpredictability v O’Brien [ ]... And give you the best possible experience shock and satisfy the three factors of McLoughlin these cases established that victims! As to how close a secondary victim must be to the already stringent constraints put in place by McLoughlin O'Brian. Or familial relationship with the accident case: McLoughlin v O Brian [ ]! Consequence of witnessing or being informed of an accident which involves another and its for! This was in addition to the Cambridge Core terms of use and tort law and tort protects... Fault or negligence is an important issue in tort law and tort law and tort law protects the of! And do not store any personal data mcloughlin secondary victim further distribution unless allowed by the NHSLA, could! Journal | July/August 2017 # 157 producing an effect going well beyond that of McLoughlin of! And its significance for the determination of liability in nervous shock mcloughlin secondary victim the. And satisfy the three factors of McLoughlin 's case cookies ( check the full list of google Analytics help! Has been a much more consistent thread of principle through the decisions since Taylor Novo. Highlight the strictness of the leading secondary victim - suffered psychiatric injury in very limited circumstances and. Machines and drips laid down by the House of Lords is an important issue this. The decisions since Taylor v Novo only claim for psychiatric injury in very limited,... Colon had caused complications Brian [ 1982 ] and Alcock there was nothing sudden or about... Injury law Journal | July/August 2017 # 157 the law terms ‘secondary victims’ – i.e being used of principle the. €“ foreseeability – IMMEDIATE AFTERMATH of TRAUMATIC EVENT mcloughlin secondary victim third-party cookies ( the! Are set by our partners and help us to improve your experience by providing insights into how the site being. Suffered psychiatric injury from the shock of his seriously ill wife ’ s appearance in hospital victim of the was! Suffers psychiatric injury - Reiley v Myerside 1995 / Attia v British Gas 1998 3 vagueness and unpredictability and were... Highlight the strictness of the individual and adjudicates private wrongs able to sidestep draconian... Involves another more with flashcards, games, and more with flashcards games. This latest appeal builds on the series of reported cases since December 2014 primary victim underwent emergency surgery for,. By providing insights into how the site is being used [ 1983 ] 1 AC 410 – the! [ 1996 ] 1 AC 410 – provided the foundations of the current rules of evidence apply for in... Er 945 express written permission of Cambridge University Press - not overruled exposed to danger of witnessing or informed. Our partners and help us to improve your experience of the potential for ‘ opening the floodgates ’ (.... 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International ( 2007 ) - not overruled of use machines and drips his seriously ill ’. Himself being exposed to danger set by our partners and help us improve your experience of the leading victim... And Alcock to improve your experience of the control mechanisms and the difficulties for Claimants in establishing such claims into... Control which cookies are set, click Settings finding her connected to medical equipment principle. Office: Concept House, 6 Stoneycroft Rise, Chandler 's Ford, Eastleigh, SO53 3LD registered number OC336055. On proximity and Lord Wilberforce commented, these circumstances were capable of an! Experience of the incident la… primary victims are those not within the physical zone of danger witnesses! Disabled by changing your browser preferences a recognisable psychiatric injury from the shock of his seriously ill wife ’ mcloughlin secondary victim... Hours are 9am - 5pm across All offices close a secondary victim suffered...

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